Rafat Moris Nagieb and Secretary, Department of Social Security [1997] AATA 448 (3 November 1997)

ADMINISTRATIVE APPEALS TRIBUNAL

RAFAT MORIS NAGIEB v. SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No.
N94/1240
AAT No. 12366
Number of pages - 14
Social Security

COURT

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION

M.T. LEWIS (Senior Member) and A.R. HORTON (Member)

CATCHWORDS

Social Security - job search allowance - whether Applicant entitled to allowance whilst absent from Australia - overpayment - whether Applicant or another person made false statement or false representation - whether waiver should be considered under pre-amendment or current legislation - whether debt should be waived due to administrative error - whether debt should be waived due to special circumstances

Social Security Act 1991 - ss 513, 1211, 1223, 1224, 1236A, 1237, 1237A, 1237AAD, Schedule 1A

Esber v Commonwealth [1992] HCA 20; (1992) 106 ALR 577

Lee v Secretary, Department of Social Security (1996) 139 ALR 57

Re Callaghan and Secretary, Department of Social Security (AAT 11404, 18 November 1996)

HEARING

SYDNEY, 15 January 1997 (hearing), 3 November 1997 (decision)

3:11:1997

The applicant appeared unrepresented.

Advocate for the Respondent: Mr J Kenny, Administrative Law Section

Department of Social Security

ORDER

The Tribunal affirms the decision under review.

DECISION

M.T. LEWIS (Senior Member) and A.R. HORTON (Member)

This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") lodged by Rafat Moris Nagieb ("the Applicant") on 5 December 1994. On 10 November 1994 the SSAT affirmed the decision of an authorised review officer of the Department of Social Security to raise and recover an overpayment of job search allowance for the period of the Applicant's absence from Australia from 12 May 1993 to 10 July 1993, which in turn affirmed a decision of a delegate of the Secretary of the Department of Social Security ("the Respondent").

The Applicant was unrepresented at the hearing. The Respondent was represented by Mr Kenny, a departmental advocate. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also admitted as evidence:

. copies of letters from the Department of Social Security to the Applicant, dated 21 July 1993, 11 August 1993, 12 November 1993, 20 June 1994 and 28 June 1994 (exhibit 1); and

. computer printout of the Applicant's repayment history from the Department of Social Security (exhibit 2).

The Applicant gave oral evidence through an official Arabic interpreter. His wife, Mrs Teriza Nagieb, also gave oral evidence. The Respondent called Mr Graham Lewis, Manager Newstart Section, Department of Social Security, Mt Druitt to give evidence.

The background to this matter is that the Applicant was granted job search allowance on 1 January 1993. He left Australia on 12 May 1993 and returned on 10 July 1993. During this time he continued to be paid job search allowance based on the fortnightly lodgement of applications for payment. After receiving information from the Department of Immigration and Ethnic Affairs as part of its data matching program that the Applicant had travelled overseas, a delegate of the Respondent decided on 16 June 1994 to raise and recover the amount of allowance paid to the Applicant whilst he was not present in Australia. The amount originally calculated as a debt was $3331.84 but this was subsequently amended to $2238.58. At the time of the hearing $889.47 was outstanding, $231.57 having been added as administrative charges and some of the debt having been already recovered.

EVIDENCE

The Applicant was born in Sudan. He was expelled from Sudan in circumstances of civil war and came to Australia, via Egypt, on 25 December 1992 under a special humanitarian program of migration. He said that his mother lived in Egypt and he had "some personal things to do" there. He was accompanied to Australia by his wife and two children. He gave evidence that he had been educated at high school to Year 12 equivalent standard. He then obtained a Diploma in Mechanics, but had never worked in that field. Instead he operated a private company conducting an import/export business. He said he conducted his business in Arabic and that he had little understanding of English.

On arrival in Australia the Applicant and his family initially resided with the family of his wife's sister at Doonside. On 5 January 1993 he sought job search allowance at the Blacktown office of the Department of Social Security. Job search allowance was granted. The Applicant and his family later moved to Hasselgrove and hence to the "jurisdiction" of the Mount Druitt office.

On 12 May 1993 the Applicant left Australia for Egypt to resolve personal affairs and to see his mother. He returned to Australia on 10 July 1993. He said that in his absence his wife submitted fortnightly claim forms for job search allowance to the Mt Druitt office (T5-T8). He said that he had completed and signed some of the forms in advance, whilst others were completed and signed by his wife in his name.

The Applicant has subsequently made three further visits to Egypt, one in 1994 for 12 weeks and two that the Applicant recalls were in 1996 for a total period of some 12 to 14 weeks. He indicated that the illness of his mother was the reason for the latter visits. In cross-examination he stated that with the exception of one occasion when he had won a ticket in a sweepstake conducted by the local Sudanese community, his mother had provided funds for the airline tickets.

The Applicant said that on arriving in Australia he had little knowledge of English. He said he undertook a formal English course through the Adult Migration Centre which he believed to be after his return from his first trip to Egypt. However, he conceded that he stated at question 1 in the application form for payment of job search allowance for the period 21 April 1993 to 4 May 1993 (T4) that he had undertaken fulltime training - taken to include English language courses - in that period. He said: "it must be right; I don't remember what happened".

He said that the English course which he undertook was not adequate to enable him to fill in forms, and that he did not fully appreciate at that time the value of seeking assistance from the interpreter service. Instead, he said he relied on the assistance of friends, casual acquaintances, and Arabic speaking people whom he encountered in shopping centres and the like. In regard to the applications for payment covering the period of his absence from Australia (T5-T8), he said that he believed he was entitled to the allowance, and he understood that the claim forms "must be filled in".

The Applicant said that prior to proceeding overseas in May 1993 he visited the Department of Immigration to extend his visa. He stated that he then visited the Department's Mt Druitt office to advise that he was going overseas. He said that he went there alone and there was no interpreter present. He recalled joining a queue but did not remember any details of the person who assisted him. He said he was advised that "completed claim form(s) could be left with his wife" in his absence. He also stated that staff made photocopies of his passport, visa, airline ticket and a letter stating that he was going overseas. He said that the letter was written by a friend but he could not remember which friend, and said that he "could have asked a person whom he met shopping" to help him with it. He said he recalled putting a stamp on the letter.

In relation to the application for payment of job search allowance for the period 5 to 18 May 1993 (T5), the Applicant agreed that he had prepared that form prior to leaving Australia on 12 May 1993, although a friend may have filled it out for him. However, at another point in his evidence, he said that a friend filled it out for him without reference to him about its content. He said that this person was not the person who wrote the abovementioned letter. He indicated that his wife handed in the form at the Mt Druitt office in order for him to receive job search allowance.

The Applicant said that the names of employers noted at question 3 of that form - which asks whether the Applicant had sought employment and if so with whom - were extracted by the Applicant from the newspaper. He said, however, that he did not approach those employers because he could not speak English. He further stated that often he did not ring in response to job advertisements because his English was poor and he anticipated he would not get the job.

In relation to the three subsequent applications for payment of job search allowance (T6, T7 and T8), covering the six week period from 19 May 1993 to 29 June 1993, the Applicant said that he was sure that his wife would have telephoned the employers noted on the forms in order to seek work for him. He said that his wife told him that she told the Department of Social Security when she submitted the forms that they were her husband's forms and that he was overseas.

The Respondent drew the Applicant's attention to the fact that there was a negative response to question 10 on each of the abovementioned application forms, which asks, among other things, whether the Applicant or his partner had travelled overseas in the period in which the allowance was claimed. The Applicant stated that he had signed question 11, which was a declaration, among other things, that he was actively seeking work and that the information was correct. He said that a friend "could have completed the rest".

The Applicant stated that whilst interpreter services might be available, they were not always available in the right language and an interpreter service had not been provided at the time he advised of his trip overseas in 1993. He said that at the time of a second trip overseas on 20 January 1994, he took the correct steps to inform the Mt Druitt office of his absence from Australia using the interpreter service. He said that he was given instructions by the interpreter about what to do.

The Applicant said that at the time of the hearing his wife was on New Start Allowance and he received payment as a spouse. Their total Department of Social Security income was $872.20 per fortnight less $40.51 which had been deducted from the parenting allowance each fortnight as withholdings in respect of the debt. The Applicant pays $180 per week rent. They have no gas or electricity debts. He owns a 12 year old Toyota Cressida on which he continues to pay $297 per month. He said that he has done some work in Australia, including working as a casual cleaner at the Hilton Hotel for seven months, and clerical work with Blacktown City Council for six months. He has undertaken training for a security licence to work as a security guard. He said that he had opened a small shop in Egypt and his business was registered under the name "The Great Eastern Eagle" as an import business.

Mrs Teriza Nagieb stated in evidence that she went with the Applicant to the Mt Druitt office some days before her husband went overseas in May 1993, and that the staff took her husband's passport, airline ticket and the letter in which he stated that he was going overseas. She said that the letter, comprising about two lines, was written by one of their friends. She said that at the time they were seeking help from many people and she could not remember the person who helped them write the letter. She said that she had told both the Department of Social Security and the SSAT about the letter.

Mrs Nagieb stated that she completed the forms and lodged them at the Mt Druitt office in her husband's name, advising the counter staff that her husband was overseas. She said that the staff accepted the forms on that basis. She stated that she used her husband's job list to complete the forms as she understood this list comprised firms that he had contacted. In response to a question from the Tribunal, she stated that she copied her husband's signature on T6, T7 and T8, because the form was in his name, yet she also stated that the Applicant himself had signed the forms. Mrs Nagieb denied that she was accompanied by a male person on any of the four occasions when she lodged the forms during the Applicant's absence.

Mr Graham Lewis, New Start Allowance manager at the Mt Druitt office, gave evidence to the Tribunal regarding the procedures for the lodgement of the application for payment forms. He has been employed by the Department of Social Security for the last 13 years, mostly at the Mt Druitt office. He said that at the relevant time the staffing levels at Mt Druitt were stable and the staff were well informed. When advised of overseas travel staff would photocopy tickets and other relevant documentation, consider the matter of further payments to the spouse/partner and arrange for interpreter services (often by telephone) where required. He referred to the ticketing machine system whereby this type of claim is processed by a specific operator at ASO2 level, who would check the form for responses to questions, signature and date. He explained the identification "trigger" on page 2 of the form, including gender identification of the client. He said that the lodgement of a form for the Applicant by a female would not have been acceptable. He stated that the likelihood of a form being accepted from a person of the opposite gender to the gender of the pension recipient and processed without adequate evidence was "slim", and the chance of doing so on four separate occasions was "negligible".

Mr Lewis also explained how forms T5-T8, because of the answers provided in them, would have been batched and processed for payment in groups of 50 by one computer action. The forms were "batched and backstored", and were not filed. He said that if the Department was advised that the person in respect of whom the form was completed was overseas the staff could not accept the form. He said that the person attending would be told that the person in respect of whom the form was completed should reclaim New Start Allowance when that person returned to Australia.

Mr Lewis noted that the ASO2 officers do not answer any questions asked of them. In the event that the person handing in the form asked any questions on behalf of the Applicant the matter would have been referred to an ASO3 officer. He also said that the Department of Social Security has been moving away from retaining paper files. Anything which is lodged with the Department of Social Security is entered onto the computer system by a counter officer. That system operated in May 1993.

The advocate for the Respondent advised the Tribunal that the Applicant's file had been mislaid during its transfer to the Mt Druitt office and that a new partial file was raised in April 1994. Subsequently, the original file was found at the Mt Druitt office, but the records in it ceased as of April 1993. Mr Lewis stated that it was not necessarily unusual that there were no papers placed on the original file at Mt Druitt after April 1993. He said that most documents were "back stored" and archived at a particular time.

Mr Lewis also said that there are no full-time interpreters available for use at Mt Druitt. The Telephone Interpreter Service is used when needed.

SUBMISSIONS

The Applicant submitted that the repayment of his job search allowance for the period of his absence overseas should be waived because of his limited knowledge of English, his lack of knowledge of the Act, inadequate advice from Departmental officers, and the fact that the Department of Social Security had accepted application forms (or income statements) for job search allowance submitted by his wife on his behalf.

It was submitted for the Respondent that the Applicant was overseas from 12 May 1993 to 10 July 1993 and was therefore not entitled to job search allowance pursuant to ss 513 and 1211 of the Social Security Act 1991 ("the Act"). The Applicant did not advise the Department of his absence, but instead, arranged for application forms, bearing false information about job seeking efforts, to be lodged in his name. As a result, there was an overpayment of $2238.58 of job search allowance. That overpayment is recoverable pursuant to s 1223 as an amount for which the Applicant was not qualified and which was not payable. The overpayment was also recoverable pursuant to s 1224 as a result of the Applicant's failure to comply with the obligation to advise of his absence overseas and the false statements about work efforts.

It was submitted also that in respect of s 1237A there was no administrative error and the Applicant did not receive the payments from the Respondent in good faith. It was also submitted that there were no special circumstances such that part or all of the debt should be waived pursuant to s 1237AAD. Moreover, it was submitted that the Applicant's false statements and failure to comply with his obligations were deliberate and disentitle him to any relief otherwise available under that section. In addition, it was submitted that there were no circumstances in which the debt should be written off pursuant to s 1236.

In respect of waiver of the right to recover the overpayment, it was submitted that the Applicant would appear to have an accrued right to have waiver of the overpayment considered in accordance with the decision of the Full Federal Court in Lee v Secretary, Department of Social Security (1996) 139 ALR 57. The Applicant sought review on or about 25 August 1993 when he protested about the withholdings from his Job Search Allowance, some five months before the law changed.

It was submitted that the Applicant's credibility was a factor in respect of whether there was fraud or whether it was an innocent mistake. It was also submitted that the evidence of the Applicant and his wife about the letter being written about his travel overseas and lodged with the Mt Druitt office is evidence which has been provided for the first time in the history of this matter.

ISSUES

There are two issues to be determined. Firstly, whether the Applicant was eligible for payments of job search allowance over the period in question, and if not, whether there is a debt due to the Commonwealth in respect of those payments. If there is such a debt, the second issue is whether that debt can and should be waived. The relevant legislation is set out below.

LEGISLATION

1. Eligibility for job search allowance and whether debt is recoverable

The qualification criteria for job search allowance at the relevant time, that is May-July 1993, were set out in s 513 of the Act. One of the criteria was that the person is in Australia throughout the period of payment of job search allowance: s 513(1)(c)(iii). Pursuant to s 1211 of the Act, as at the relevant date, job search allowance was not payable to a person who is outside Australia because presence in Australia is specified as an essential condition of qualification.

The provisions relating to amounts of payments recoverable under the Act are set out in Part 5.2 of that Act. Insofar as is relevant, s 1223 provided, at the time the decision under review was made:

Subject to subsection (2), if:

(a) an amount has been paid to a person by way of social security payment; and

(b) the recipient was not qualified for the social security payment and the amount was not payable to the recipient;

the amount so paid is a debt due to the Commonwealth.

Section 1224 of the Act provides insofar as is relevant:

(1) If:

(a) an amount has been paid to a recipient by way of social security payment under this Act or the 1947 Act; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

2. WAIVER OF DEBT

The legislative provisions relating to the use of waiver of the debt are set out in Part 5.4 of the Act. These provisions have undergone a number of amendments since 1991. Insofar as is relevant, the following are the applicable provisions at three different times, the importance of which will be explained thereafter.

THE 1991 ACT AFTER THE 1993 AMENDMENTS

The provisions of the Act relating to the waiver of debt were first amended by the Social Security (Budget and Other Measures) Legislation Amendment Act 1993 ("the 1993 Amendment Act"), which was assented to on 24 December 1993. This was the first statutory circumscription of the circumstances in which the discretion to waive could be exercised. The result of those amendments are set out in s 1236A.

Section 1236A provided, insofar as is relevant -

1236A. Sections 1237 and 1237A apply to all debts, whenever incurred, owed to the Commonwealth and arising under this Act or under the Social Security Act 1947.

Section 1237 related to the power to waive the Commonwealth's right to recover the whole of a debt and provided, in part -

1237(1) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth's right to recover the whole of a debt from a person but only in accordance with this section.

Administrative error

1237(2) The Secretary must waive if;

(a) the debt arose solely because of an administrative error made by the Commonwealth; and

(b) the person received in good faith the payment or payments that gave rise to the debt.

Note: If the Secretary waives the Commonwealth's right to recover, this is a permanent bar to recovery of the debt - the debt effectively ceases to exist.

Section 1237A related to the power to waive part of a debt and provided, in part -

1237A (1) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth's right to recover a part of a debt from a person but only in accordance with this section.

Recovery of part of debt in full satisfaction for whole of debt

1237A (3) If:

(a) the Commonwealth has recovered at least 80% of the original value of the debt from the person; and

(b) the Commonwealth and the person agree that the recovery is in full satisfaction for the whole of the debt; and

(c) the person does not have the capacity to repay a greater proportion of the debt;

the Secretary must waive the remaining 20% or less of the value of the original debt.

1995 AMENDMENTS

The provisions relating to the waiver of debts were amended further by the Social Security Legislation Amendment (Carer Pension and Other Measures) Act 1995 ("the 1995 Amendment Act"), assented to on 12 December 1995. Section 1236A was repealed and the following section was substituted -

Application

1236A(1) Sections 1237, 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC and 1237AAD apply to:

(a) debts arising on or after 1 January 1996; and

(b) the amounts of debts arising before 1 January 1996 that were outstanding at the start of that day.

(2) Section 1237AB applies to all debts, whenever incurred, owed to the Commonwealth and arising under this Act or under the Social Security Act 1947.

Sections 1237 and 1237A were repealed and the following sections, as far as is relevant, were substituted -

Power to waive Commonwealth's right to recover debt

Secretary's limited power to waive

1237 (1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD.

Waiver of debt arising from error Administrative error 1237A (1) The Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. Waiver in special circumstances 1237AAD The secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that: (a) the debt did not result wholly or partly from the debtor or another person knowingly: (i) making a false statement or a false representation; or (ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

These amendments, set out in Schedule 3 to the 1995 Amendment Act, commenced on 1 January 1996 pursuant to s 2(4) of that Act.

1996 AMENDMENTS

The waiver provisions were amended again by the Social Security Legislation Amendment (Budget and Other Measures) Act 1996 ("the 1996 Amendment Act"), assented to on 23 December 1996. Section 1237A was amended by Schedule 18, Part 4 to the 1996 Amendment Act. Sections 1237(1) and 1237AAD were left unchanged.

Section 1237A as amended by the 1996 Amendment Act, as far as is relevant, provides -

Waiver of debt arising from error Administrative error 1237A (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

The application of the abovementioned provision, as amended, is set out in Schedule 21, Part 4 to the 1996 Amendment Act which adds cl 105 at the end of Schedule 1A to the 1991 Act. Clause 105 provides -

105 Application and saving provisions: debts due to the Commonwealth and their recovery

(1) For the avoidance of doubt, and without affecting the operation of section 8 of the Acts Interpretation Act 1901, Part 2 of Schedule 18 of the amending Act does not:

(a) affect the operation of Part 5.2 or 5.3 of this Act before 1 October 1997; or

(b) extinguish the amount of any debt due to the Commonwealth arising before 1 October 1997 that was outstanding at the start of that day; or

(c) prevent the recovery, on or after 1 October 1997, of any such outstanding amount.

(2) .........

(3) Section 1237A of this Act, as amended by the amending Act, applies in relation to debts arising before, on or after 1 October 1997.

(4) Despite section 8 of the Acts Interpretation Act 1901, if a legal proceeding or an application for review of a decision:

(a) relates to, or otherwise involves, a provision of Part 5.2, 5.3 or 5.4 of this Act; and

(b) is not finally determined before 1 October 1997;

the proceeding or application must, if continued, be determined as if it had been instituted on that day, and this Act, as amended by Schedule 18 to the amending Act, applies to the proceeding or application accordingly.

(5) In this clause:

amending Act means the Social Security Legislation Amendment (Budget and Other Measures) Act 1996.

CONSIDERATION OF EVIDENCE AND FINDINGS OF FACT

The Applicant was overseas from 12 May 1993 to 10 July 1993 at a time when job search allowance was paid to him, and pursuant to ss 513(1)(c)(iii) and 1211 of the Act as it then was, the Applicant was not entitled to receive payment of job search allowance for this period. In determining whether that overpayment is a debt due to the Commonwealth pursuant to s 1223 or s 1224, the Tribunal had regard to the evidence before it and notes that neither the Applicant nor his wife presented as credible witnesses. The Applicant's evidence was at times inconsistent from one point to another and differed in significant detail from his wife's evidence.

From the evidence the Tribunal finds that the forms for the payment of job search allowance were not lodged by Mrs Nagieb in person. In order for the forms to have been accepted by Departmental staff, the Tribunal finds on the balance of probabilities that they would have been lodged by a male person of approximately the same age as the Applicant. This finding is made notwithstanding Mrs Nagieb's denial that she was accompanied by a male person on the occasions she lodged the forms.

The Tribunal also notes that all four forms (T5-T8) were completed to indicate that the Applicant did not go overseas during the period the allowance was claimed. This is inconsistent with Mrs Nagieb's evidence that she informed the staff at the Mt Druitt office, when lodging the forms, that the Applicant was overseas. It is also inconsistent with the claim made by both the Applicant and his wife that a letter stating that the Applicant was going overseas was provided to the Department and copied by the staff. The Tribunal notes that there is no reference to this letter in the SSAT reasons for decision, and no record of it in the s 37 documents. In particular, the Tribunal notes that such inconsistencies, if revealed, would have caused the staff to advise the person lodging the form that the form could not be accepted and that the Applicant would have to reapply for job search allowance when he returned to Australia. The Tribunal finds further that the information on the forms that the Applicant had looked for work with the employers noted therein was not correct, whether or not he had sought work with those employers at some other time.

The Applicant claimed that he visited the Mt Druitt office before his first trip overseas, during which visit he claims he was not provided with an interpreter. Even if this were true, it does not account for the "no" response to the question on forms lodged in the Applicant's absence overseas, indicating that he had not travelled overseas during the relevant periods. In any event, the Tribunal prefers the evidence of Mr Lewis, that a telephone interpreter service was provided as required.

Moreover, the Tribunal considers that it is absolutely inconceivable that such a litany of administrative errors could have occurred in order for the evidence of the Applicant and his wife to be true in respect of her attendance at the Mt Druitt office to submit the forms on behalf of the Applicant.

For these reasons, the Tribunal finds that payment of job search allowance for the relevant period was made because of a false statement or a false representation by the Applicant or another person. Therefore, pursuant to s 1224 of the Act a debt is due by the Applicant to the Commonwealth.

The Tribunal now turns to consider whether the right to recover the debt can and should be waived by the Respondent. In order to apply the relevant legislative provisions, which have undergone a number of amendments, it is first necessary to consider the history of this matter.

The decision to raise and recover the overpayment to the Applicant was made on 11 August 1993. On 30 May 1994 the Applicant requested review by an authorised review officer. The request was with respect to the raising of the overpayment and no reference was made to the issue of waiver. On 16 June 1994 a Delegate of the Respondent reviewed the decision to raise and recover the overpayment, and having found an error in the calculations the debt was recalculated. No consideration was given by the Delegate to the issue of waiver or write off.

On 20 June 1994 a file note signed "S Lane" read in part -

Client was advised of ... overpayment & he then claimed he had attended Mt Druitt Social Security after receiving OP letter & was told it was an error & the OP would be closed....

Delegation to waiver the OP exists at the ASO4 level & above but no delegation exists to write off at the regional office - it would have to be referred to Debt Management Unit. Welfare Rights have now been contacted by client & it is understood he wishes to have overpayment reviewed. I have completed an SA284 & checked that the overpayment calculations are correct.....

NB. "Someone" else has dealt with this issue as withholdings were ceased after one payment in August 1993, but no explanation on file. DMU (Debt Management Unit) unable to assist.

The Tribunal interprets this file note as clarification that the Applicant wanted the focus for review to be the decision to raise the overpayment. It appears that although Ms Lane contemplated whether review was required in respect of waiver or write off, that was clarified in the negative by the Applicant. As to the withholdings being ceased after one payment in August 1993, there is no evidence to suggest that this occurred as a result of waiver or write off. A reasonable conclusion on the minimal facts before the Tribunal is that they were stopped because a Departmental officer concluded that the overpayment had been raised in error. The overpayment was then reviewed by an authorised review officer on 15 July 1994. The decision in respect of the raising of an overpayment was not changed. Withholdings at $20 per fortnight were to continue. Waiver was also considered and refused.

In Lee (supra) a primary decision maker made a decision on 13 December 1993 to raise an overpayment and to recover the debt. Significantly, the primary decision included a decision not to waive the right to recover the debt. The appellant sought review of that decision on 23 December 1993, one day before the provisions of the Act relating to waiver of debts were amended by the 1993 Amendment Act. It was held by Cooper and Moore JJ in the majority that the appellant had a right to have the primary decision reviewed according to the terms of s 1237 of the Act as it stood when the primary decision was made. This was a right protected by s 8 of the Acts Interpretation Act 1901 and arose either when the decision maker first considered waiver, on the reasoning of Cooper J, or when the appellant first applied for review in respect of that decision, on the reasoning of Moore J. It was held that the amending legislation did not evince a legislative intention to exclude the protection of s 8 of the Acts Interpretation Act 1901.

It is not entirely clear from the judgment precisely when it should be considered that a decision has been made on the question of waiver. Does the raising of a debt itself imply that a decision has been made not to exercise the power to waive the right to recover that debt, or must there be evidence that the delegate's mind has addressed this question?

Although the majority in Lee did not expressly refer to this, it would seem consistent with the majority judgment that before an accrued right to have the decision reviewed arises by reference to the powers exercised, there must be a decision dealing with waiver, or a decision which should have dealt with waiver and omitted to do so. The accrued right in these matters is a right to have the exercise of the power to waive the debt reviewed and exercised again as it might have been exercised initially.

There is no evidence in the matter now before this Tribunal that the primary decision maker considered whether or not to waive the right to recover the debt. As noted, no decision was made on the issue of waiver until 15 July 1994 when the authorised review officer decided that the debt could not be waived. Consequently, the Applicant had the accrued right to have the decision reviewed according to the legislation in force at that time, that being the Act as amended by the 1993 Amendment Act. The Act, as it then was, included waiver in circumstances of administrative error [s 1237(2)].

However, as noted above, the waiver provisions were substantially amended after the authorised review officer decision of 15 July 1994 by the 1995 Amendment Act. Under the new s 1236A, the new waiver provisions were to apply to debts arising after 1 January 1996, and, where a debt existed prior to 1 January 1996, as in the matter before this Tribunal, to the outstanding balance of the debt as at 1 January 1996. The Act, as it then was, continued the waiver in circumstances of administrative error [s 1237A(1)], and introduced waiver in special circumstances which was not present at the time of the authorised review officer or the SSAT decision [s 1237AAD].

The effects of the 1995 amendment to s 1236A were considered by the Tribunal in Re Callaghan and Secretary, Department of Social Security (AAT 11404, 18 November 1996). In that decision Deputy President Forgie applied the majority judgments in Esber v Commonwealth [1992] HCA 20; (1992) 106 ALR 577 and Lee (supra), as she was required to do.

There were further amendments introduced by the 1996 Amendment Act, the result of which was to amend the administrative error provision of s 1237A(1) and add cl 105 to Schedule 1A to the Act. The effect of cl 105 is that, on and from 1 October 1997, s 1237A of the Act as amended by the 1996 Amendment Act, must be applied in matters where the debt arose before 1 October 1997 and was outstanding at that date, and where the application for review by this Tribunal has not been finally determined before 1 October 1997. This is the case at present and so cl 105 merely affirms that s 1237A as amended must be applied in the present case.

The Tribunal will follow the decisions in Lee and Re Callaghan. The effect of this is twofold. Firstly, pursuant to s 1236A of the Act (as amended by the 1995 Amendment Act and left unchanged by the 1996 Amendment Act), the Tribunal is required to apply the waiver provisions (as amended by both the 1995 and the 1996 Amendment Acts) to the amount of the Applicant's debt outstanding as at 1 January 1996. Therefore, the outstanding debt falls for consideration in respect of the special circumstances provision pursuant to s 1237AAD of the Act (as amended by the 1995 Amendment Act and left unchanged by the 1996 Amendment Act), as well as the administrative error provisions pursuant to subs (1) and (1A) of s 1237A of the Act (as last amended by the 1996 Amendment Act).

Secondly, in respect of that part of the debt which has been paid prior to 1 January 1996, the Applicant has an accrued right to have the Tribunal review whether that part of the debt should be waived according to the legislation in force at the time when the waiver was first considered on 15 July 1994. Therefore, the amount of the debt already repaid falls for consideration in respect of the administrative error provision as it then was in the form of s 1237(2) of the Act (as amended by the 1993 Amendment Act).

For the reasons stated above there has not been any administrative error. Therefore, subsections 1237A(1) and (1A) of the Act, as amended by the 1996 Amendment Act, do not assist the Applicant in respect of that part of the debt which remains outstanding. Similarly, s 1237(2) of the Act, as amended by the 1993 Amendment Act, does not assist the Applicant in respect of that part of the debt which has already been repaid.

That leaves the issue of waiver in special circumstances in respect of the outstanding debt, pursuant to s 1237AAD of the Act as amended by the 1995 Amendment Act. As the Tribunal has found that the debt occurred as a result of the Applicant or another person knowingly making a false statement or false representation, then the Applicant does not satisfy the requirements for waiver on the grounds of special circumstances, and therefore the debt cannot be waived.

Whether or not this decision had been handed down prior to 1 October 1997 the result inevitably is the same. In this matter, there are no grounds on which the recoverable debt can be waived, both in respect of that amount which has already been recovered, and the amount of the debt still outstanding. Specifically, applying the 1996 Amendment Act, as the Tribunal is required to do, there are no grounds on which the recoverable debt should be waived.

The decision under review which is the decision to raise and recover the overpayment of job search allowance paid to the Applicant whilst he was overseas from 12 May 1993 to 10 July 1993 is affirmed.